Common Defences To A Mischief Charge In Canada

May 6, 2021

Common Defences To A Mischief Charge In Canada

If you have been charged with a mischief offence in Canada, your criminal defence lawyer can help you get your charges dropped before the trial even begins. You can avail of a pre-trial diversion program, resulting in your mischief charges being withdrawn either through an alternative measures program or through mental health diversion.

In case your minor offence is a first-time offence or second offence with at least two years gap between the two charges, your most viable option is to enter the alternative measures program. In other cases, if you had been having mental issues while you committed mischief, you can be a good candidate for mental health diversion.

In case your case goes to a trial, the best defence you can have against your mischief charge will largely depend on your case’s unique circumstances. Your criminal defence attorney will review the evidence the Crown has against you to determine the best defence and inform you about what options you have moving forward.

Some of the most viable defences against mischief include arguing that the Crown Prosecutor hasn’t been able to prove the criminal’s identity beyond a reasonable doubt, the colour of right, and accident. We will now discuss these defences one by one to help you understand them better:

Proving Identity Beyond Reasonable Doubt

As the Crown Prosecutor has to prove that it was, in fact, you who committed mischief before finding you guilty of the offence. If your legal team can create a reasonable doubt about the identity match, you may be acquitted of the charges.

Proving identity becomes a real issue when someone commits mischief without witnesses; if the witness statements reporting the crime are inconsistent or the Crown’s witnesses cannot show up to trial. Often, there may not be any witnesses or offence recordings, and the Crown, therefore, must rely entirely on circumstantial evidence to determine your guilt.

Suppose the Crown Prosecutor relies on only circumstantial evidence to prove your guilt. In that case, they will also need to prove that the only inference that could be drawn from the evidence presented at trial is that you’re guilty of the offence.

Colour Of Right

Colour of right refers to a particular situation where you sincerely and truly believed that specific facts were accurate when, in fact, they were not. In case those facts had been correct, it would mean that you would not be found guilty of the offence.

For instance, you’re charged with mischief when you honestly but wrongly believed that you owned a particular asset and that you were entitled to do whatever you wanted to do with it. If the property you damaged or destroyed were wholly yours, you would not have been found guilty of committing mischief.

The colour of right will not work as a defence in situations when you believed that you were morally entitled to the asset, and you considered it as yours. To make the colour of right defence work, you must show that you had a legitimate reason to believe that you had a genuine proprietary interest in the property under discussion.


To prove mischief charges, the Crown Prosecutor must prove the crime’s mens rea (intent to commit mischief) element beyond a reasonable doubt. They need to demonstrate that you had planned the outcome of your mischief or that you were reckless about whether your actions would damage or destroy the plaintiff’s property.

If you had damaged the asset only by accident, you would not have the required guilty mind to be found guilty of mischief.

About Slaferek Callihoo

Slaferek Callihoo is an experienced criminal defence law agency in Edmonton, Alberta. Our qualified legal team will review your mischief charges and devise the best defence for your legal case. Visit our website to learn more about our team or contact us for expert legal guidance.

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